§ PROVISIONS FOR REPRESENTATIONS AND INQUIRY IN RESPECT OF DEPORTATION ORDER
- (1) Where the Secretary of State has decided to make a deportation order and no appeal lies by virtue of the provisions of this Act against
369 such decision, any person aggrieved by such decision may within a period of twenty-eight days (or such longer period as the Secretary of State may allow) of service upon him of notice of the said decision make representations to the Secretary of State against the making of a deportation order.
- (2) In any case where such representations are made then unless the Secretary of State certifies that he is satisfied that there are no prima facie grounds for holding an inquiry he shall appoint one or more persons to hold an inquiry and to report to him and pending such report he shall not make the deportation order.
- (3) The Secretary of State shall direct whether the inquiry or any part thereof is to be held in private or in the absence of any persons specified by name or description and the person appointed shall comply with such directions.
- (4) The person appointed shall report to the Secretary of State and such report shall not be published in whole or in part without the authority of the Secretary of State.
- (5) The provisions of paragraph 2 of Schedule 3 to this Act shall apply to a person to whom notice has been given under this section as they apply to a person to whom notice has been given under section 18 of this Act.
- (6) A notice given under this section shall inform the person to whom it is given of his rights under this section.—[Mr. S. C. Silkin.]
§ Brought up, and read the First time.
§ Mr. Deputy Speaker (Sir R. Grant-Ferris)
With this new Clause the House can discuss also new Clause 5—Representation to chief magistrate on proposal to deport a non-patrial—and Amendment No. 127, in page 14, line 29, leave out subsection (5); and Amendment No. 128, in page 15, line 15, leave out subsection (3); Government Amendment No. 46, plus Amendment No. 95, in page 15, line 20, after 'good', insert:as being in the interests of national security or of the relations between the United Kingdom and any other country.Government Amendments Nos. 47, 48 and 49, plus Amendment No. 96, in page 16, line 3, at end insert:( ) An appeal under this section against a decision to make a deportation order against a person shall be to the Appeal Tribunal in the first instance, instead of to an adjudicator, if the ground of the decision was that his deportation is conducive to the public good; and a person shall not be entitled to appeal against a decision to make a deportation order against him if the ground of the decision was 370 that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country.";Government Amendments Nos. 50 and 52, plus Amendment No. 114, in page 16, line 14, leave out 'not'; and Amendment No. 115, in page 16, line 19, at end insert:'but not if the Secretary of State certifies that he has taken such action in the interests of national security',Government Amendments Nos. 57, 59 and 91.
§ Mr. Silkin
This group of Amendments forms a very important part of the discussion that we shall be having at this stage of the Bill. This series of new Clauses and Amendments concerns in one way or another the right of appeal of a person against whom a deportation order has been made on the grounds that the Secretary of State deems his deportation to be conducive to the public good—that is, under the provisions of Clause 3(5)(b). The power to deport on those grounds as set out in the Bill are very wide. Many would contend that the term "conducive to the public good" is so vague and open-ended that it could cover virtually any reasons which a Government might have for disliking the presence of a non-citizen in Britain and of those not enjoying what the Bill describes as the right of appeal. A very strong case could be made for narrowing that power.
We appreciate, however, that it is easier to criticise the width of a power than it is to formulate words which are adequate without being excessive. Therefore, we recognise that the practical solution to the problem is to ensure that those who are subject to the power shall enjoy an adequate right of appeal to an independent tribunal. No such right exists in the Bill as it stands. That was the case we pressed on Second Reading and over many hours in Committee.
The Secretary of State has come some way to meeting us, because his Amendment No. 47 provides for the right of appeal to extend to cases of deportation where the Secretary of State deems it to be conducive to the public good, and his Amendment 49 provides the machinery for the appeal, but in so doing it also provides for limitations upon it. It is the limitations with which we have our first quarrel.
371 The right of appeal is not to be given by the Secretary of State in three cases which are set out in Amendments Nos. 46 and 49. They are, first, that it isin the interests of national security";second, that it is
and third—these are very importantin the interests of … relations between the United Kingdom and any other country";words—for other reasons of a political nature ".We accept that the first two exceptions are understandable, although even in those cases we believe that the mere certificate of the Secretary of State should not deprive the person concerned of all possibility of making his case.
But the third ground for certifying against a right of appeal, as stated in the right hon. Gentleman's Amendment, is as vague and open-ended as the very phrase:conducive to the public good".What reasons of a political nature the right hon. Gentleman has in mind which do not fall within the ambit of the interests of national security or relations between this country and another, he will no doubt tell us.
In Committee the Government spokesmen, including the right hon. Gentleman, tended to speak of security grounds and political grounds as interchangeable. If they are, the third category is unnecessary. If they are not interchangeable, grounds must be added which do not fall within the first two. What are they? Let the right hon. Gentleman spell them out clearly and say what sort of grounds he has in mind when he adds those words.
Whatever grounds he has in mind, does not he agree that the words are so wide that they could comprehend the sort of reasons which might appeal to a dictatorial régime but are totally inappropriate to a parliamentary democracy? They are wide and dangerous, and it is no justification for placing on the Statute Book words that are wide and dangerous to say that the right hon. Gentleman does not intend to use his powers in a wide and dangerous way.
That is why in Amendments Nos. 95 and 96 we have sought to exclude those words from the limitation, and we call upon the right hon. Gentleman to accept our limitation on his powers. If he cannot 372 convince us of the need to retain those words, we shall have the greatest difficulty in accepting the breadth of this certifying power.
§ Mr. F. P. Crowder (Ruislip Northwood)
Why are the first two grounds acceptable to the Opposition? There is a right of appeal in everything, so why do the Opposition accept those two grounds? I do not regard them as being acceptable at all, I think that they are wrong. Why should an arbitrary committee or person be entitled to say "No" without an appeal?
§ Mr. Silkin
No doubt the hon. and learned Gentleman will put that question to his right hon. Friend. We discussed the matter in Committee in great detail. We understand the difficulties of providing a right of appeal if the circumstances are that evidence given before the appeal tribunal must necessarily be taken not only in secret but also not in the presence of the person who is appealing or his representatives. It is because we understand those difficulties that we have been prepared to accept the first two grounds. But we have the greatest difficulty in understanding what the Home Secretary has in mind with the third ground, and the very wide term "other political reasons", and why he finds it necessary to include it.
I come now to the other main point of principle raised by the series of Amendments. We pressed upon the right hon. Gentleman in Committee the need to allow the victim of a deportation order a positive right of representation, even in those cases where we recognise the difficulty of allowing an appeal in a full sense of the term. We felt that even in those cases there must be a proper right to present his case, and we urged something akin to the "three wise men" procedure of the Civil Service, so that we could make as sure as possible that people were not deported on grounds to which they might have given an adequate answer.
The Home Secretary was attracted by that idea. As I understood what he said in Committee, he undertook to make use of independent advice of that kind, although he was not prepared to transfer his own responsibility in such cases to an independent tribunal. He said:To deal with these cases I had in mind the 'three wise men' procedure. Frankly, I have not made up my mind about the exact 373 procedure, for I wanted to hear what would be said in the Committee … on the principle that what has worked for the British Civil Service should work pretty well for the alien in these circumstances. I hope that that has met the right hon. Gentleman's point.He was referring to my right hon. Friend the Member for Cardiff, South-East (Mr. Callaghan), who replied:It does, and I am much obliged. If the Home Secretary could, on Report, give us some indication of the way his thinking is going on this, it might help us to shorten the debate.The right hon. Gentleman replied:I shall certainly do that."—[OFFICIAL REPORT, Standing Committee B, 20th May, 1971; c. 1127.]In the light of that undertaking I, having moved an Amendment, obtained the leave of the Committee to withdraw it.
We have now tabled new Clause 2 for two reasons: first, to enable the right hon. Gentleman to make good his promise, so that we can consider and debate the procedure which he has in mind; second, to draw attention to what seems to us to be one of the main difficulties of the kind of procedure he has in mind.
In Committee the right hon. Gentleman objected to any statutory procedure and we accepted, albeit with reluctance, that he genuinely intended to set up some informal "three wise men" procedure. There are obvious difficulties if the procedure is not within a statutory framework, if the right to make representations is not embodied in clearly defined words for all to read. What precisely will the right be if the Secretary of State certifies under this Amendment? How will the person proposed to be deported know what is alleged against him? How will he be informed of his right to make representations to the informal body? What will be that body's rights in respect of obtaining evidence and seeking to carry out its task as impartially as it can?
These are very important considerations, and the right hon. Gentleman will need to satisfy us that they can be met in such a way by an informal, non-statutory procedure that justice is both done and seen to be done. It is essential that that should be so if we are taking away this right of appeal.
§ New Clause 2 seeks to set out the principal safeguards which we believe are required—the fixed period for making representations after proper notice of his rights has been given to the prospective deportee, a fair consideration of his case followed by a proper report. The right hon. Gentleman will have to show that those requirements will be met and how they will be met if he is to persuade us that there is no need to embody the rights he is prepared to give in the legislation which makes them necessary.
§ Mr. David Steel (Roxburgh, Selkirk and Peebles)
Government Amendment No. 46 is in response to an Amendment which I moved in Committee. I have been looking up what the Home Secretary said then in response to me. He said that he would be willing to table an Amendment to allow appeals in certain cases. I must say that while I accept his views and the reluctant necessity not to have an open appeals system in cases of national security but to leave it instead to the judgment of the Home Secretary, we require some explanation about what is meant by the phrasereasons of a political nature.It is an unfortunate phrase to have in legislation. The fact that it is stated in black and white makes it seem more alarming than when the right hon. Gentleman gave his reasonable reply in Committee.
My present inclination is not to support Amendment No. 46 because it seems to be an unfortunate phrase. I hope that the right hon. Gentleman will give the House a clearer explanation about what he has in mind and how on earth that rather vague phrase can possibly be defined in individual cases.
We have returned to the point frequently made in Committee that using phrases like this with the right hon. Gentleman as Home Secretary may be one thing, but using such a phrase not knowing who may become Home Secretary at another point of time is quite another matter. The House has to legislate on the basis of permanence in spite of a shift from one Home Secretary to another, from one party to another. With that in mind I am very unhappy about the proposed wording, although I recognise that it arises from a point raised in Committee.
§ The Secretary of State for the Home Department (Mr. Reginald Maudling)
Two points have been raised: the question of the words "of a political nature" and, secondly, the procedure of advice to the Home Secretary in these cases. The cases involved are special personal cases, not great in number but often important in their implications.
To deal with the phrase first, I do not know why the hon. and learned Member for Dulwich (Mr. S. C. Silkin) thinks it is so dangerous. It is taken from legislation enacted by his own party when in government. It is wording used in the Aliens Appeal Order, 1970, and is based on the recommendation of the Wilson Committee, which was to the effect that there are cases which cannot fall strictly within security considerations nor strictly within considerations of international relations.
At the time that the Wilson Committee was reporting, it had in mind that some political figure from another country with an extreme political view might come over here to make speeches of a kind highly offensive to a particular community. This was why the Government in 1970 put this phrase into that Order, and Parliament accepted it when passing the Order. It would be a rare occurrence, but that was the thinking behind it. There could be cases in which one would think it wise to exclude people on the ground that their presence would cause widespread offence. There is nothing sinister about the words; they are familiar and are copied from the 1970 legislation.
On the matter of appeals, I told the Committee that I would restore the appeal procedure for people already here who had been denied what they might have expected in the way of an extension of stay on the ground that their presence was not conducive to the public interest. The Clause carries out in full the undertaking given in Committee.
There remains the important but rare case of people who have to be excluded or deported on grounds of national security. I said that I was considering introducing a procedure of a non-statutory character to deal with such cases where a Home Secretary has to decide whether it is right in the national interest to exclude certain people from this country 376 on grounds of security. I said in Committee that this procedure had appeared for some years to have worked satisfactorily in respect of individual civil servants and that it was a good procedure in regard to particular cases. Therefore, I intend to adapt this procedure for those cases and to introduce this with effect from the date of operation of the Bill.
The details of this procedure were announced some while ago in the House by my right hon. Friend the Member for Wolverhampton, South-West (Mr. Powell) who was then Financial Secretary to the Treasury, and who then explained the features of that procedure. I shall explain what we have in mind. All these proceedings start with a personal decision by the Home Secretary on national security grounds. The person concerned is notified of the decision and he will be given by the Home Office such particulars of allegations as will not entail disclosure of sources of evidence. At the same time the person will be notified that he can make representations to the three advisers and will be given time to decide whether or not to do so. The advisers will then take account of any representations made by the person concerned. They will allow him to appear before them, if he wishes. He will not be entitled to legal representation, but he may be assisted by a friend to such extent as the advisers sanction. As well as speaking for himself, he may arrange for a third party to testify on his behalf. Neither the sources of evidence nor evidence that might lead to disclosure of sources can be revealed to the person concerned, but the advisers will ensure that the person is able to make his points effectively and the procedure will give him the best possible opportunity to make the points he wishes to bring to their notice. This is all on the lines of the procedure which has worked for some time in regard to British Crown servants.
There is another point which arises from some remarks made recently by Mr. Wigoder. Since the evidence against a person necessarily has to be received in his absence, the advisers in assessing the case will bear in mind that it has not been tested by cross-examination and that the person has not had the opportunity to rebut it. This is an important point which will be contained in the instructions.
377 On receiving the advice of advisers the Secretary of State will reconsider his original decision, but the advice given to him will not be revealed. If the person does not wish his case to go to the three advisers, he will be given full opportunity to make representations to the Secretary of State, and the names of the advisers will be made known on their appointment.
This carries out in full, as I said I would do, the procedure which has worked for some time for civil servants involved in a matter of this kind. I recommend it to the House as the best possible system we can adopt in what is inevitably a difficult case. We have to reconcile the needs of national security with the proper rights of the individual to protect himself. It is a better procedure than the statutory device of the Amendment put forward by the Opposition. I am not sure that it is wise to put this in statutory form. In effect, it means importing once again into this matter a justiciable issue, whereas the whole basis of my philosophy is that these are decisions of a political and executive character which should be subject to Parliament and not subject to courts, arbitrators, and so on.
§ Mr. Elystan Morgan (Cardigan)
The Home Secretary mentioned a reference in the Immigration Appeals Procedure Rules of 1960 to the words "of a political nature". I have looked carefully through the rules and cannot find any reference there. Is it an oblique reference in Rule 12(1)(b)?
§ Mr. Maudling
Article 8 of the Aliens (Appeals) Order, 1970, states:Where … it appears to the Secretary of State that the decision or action was taken wholly or mainly in the interests of national security or of the relations between the United Kingdom and any other country or otherwise on grounds of a political nature …We are exactly following precedent. The procedure I have suggested is the best way of handling the difficult problem which we discussed thoughtfully and thoroughly in Committee, and I hope the House will accept the serious Amendment which the Government are putting forward on this point.
§ Mr. Tom Driberg (Barking)
Before the right hon. Gentleman sits down, will he say why he considers it right that no legal representation should be allowed to the appellants?
§ Mr. Maudling
This procedure has worked well with civil servants, and, looking back on the recent case of which we all have knowledge, I feel that there is difficulty if it appears that these decisions are justiciable, legal decisions. They are executive, political decisions, subject to the House of Commons and not to the courts of law.
§ Mr. Charles Fletcher-Cooke (Darwen)
When I read the Amendment I thought it contained a misprint. I thought that the true wording was:if the Home Secretary certifies that the appellant's departure from the United Kingdom would be conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a non-political nature …My right hon. Friend has persuaded me that there is a precedent for this remarkable wording in the works of the previous Administration.
I quite understand when my right hon. Friend says that there may be men who wish to come into this country or are already here who will make such nuisances or beasts of themselves by stirring up racial, religious or other hatreds that they must be expelled. I do not think any of us would disagree with that. What I do not understand is this: if they are to be expelled, why should they not have a right of appeal against expulsion? The evidence against them is not so secret and non-disclosable that the special procedure has to be put into operation. Where national security is involved, we all know that the evidence cannot be disclosed even to a tribunal itself sometimes, much less to the man, and much less to his advisers. In those circumstances it seems right that the non-statutory provisions on which my right hon. Friend insists should be adhered to. But if it is not a case of national security—ex hypothesi, this is not a case of national security—why can the man not appeal in the ordinary way? It is very unlikely that his appeal will succeed, but this is no reason for depriving him of the right
I ask in this third and very delicate category of case, which might be abused by Home Secretaries unlike my right hon. Friend, that the normal system of appeal be put forward, because in such cases it is possible for the man to be confronted with the charge against [...] 379 and for his advisers and the tribunal to be told the reason for his expulsion; namely, that he is a stirrer-up of trouble and is not wanted here. Why should he not have a chance to produce a case that this evidence is untrue, in the normal way?
§ Mr. Alexander W. Lyon (York)
I agree with the hon. and learned Member for Darwen (Mr. Fletcher-Cooke) about these political matters. Indeed, in the one example which the Home Secretary quoted in defence of these words one was immediately reminded of the Chicago Seven trial, when one of the accused came across to this country and there was agitation that he should be deported.
In precisely that case, why should he not have been allowed to appeal and say, "Whatever I did in Chicago, and whatever the allegations against me in that trial, which have made me notorious, all I want to do here is act as a tourist, to go around the country and forget about the incidents of the past"? Why should he not then be allowed to put that case before a tribunal? If he convinces a tribunal, the decision should be made in his favour. This seems to me a self-evident human right, and I am surprised that the Home Secretary thinks that it is so implausible that we should rely on the alternative words of the Opposition Amendment.
If by neglect we allowed these words to go through in the Aliens Order, perhaps the right answer is to amend that Order and not to continue to transgress by neglect.
Clause 3(5)(b) contains the words:
if the Secretary of State deems his deportation to be conducive to the public good …".
No other paragraph in that subsection contains the words "the Secretary of State deems", yet all the paragraphs of Clause 15(1)(a), (b) and (c) contain references to the Secretary of State.
§ If the first words mean that the Secretary of State's decision is final, I do not see how there can then be a right of appeal. If it simply means that in those cases the Secretary of State has to make the decision and it must not be left to one of his officials, I cannot see why there is a reference in Clause 15 to the various powers of the Secretary of State.
§ I am wondering whether, in putting in this right of appeal now, on the public 380 good cases, the Home Secretary is not allowing a kind of consultative opinion by the appeal tribunal which would come back to him to be finally decided in the light of that opinion. Will this be a final opinion of the tribunal which can reverse the decision of the Secretary of State, or will it simply be an advisory opinion which he can accept or reject according to his will? Clearly, it would be wrong to allow this right of appeal to be written in when it is only an emasculated right.
§ Mr. Clinton Davis (Hackney, Central)
Whenever the Home Secretary in Committee indicated that he did not like a right of appeal, he would say that it was not a justiciable matter. Yet the Bill is riddled with inconsistencies. There are some matters which, according to his definition, would not be justiciable where there is a right of appeal.
I entirely endorse the views expressed by the hon. and learned Members for Darwen (Mr. Fletcher-Cooke) and for Ruislip-Northwood (Mr. Crowder) indicating that there should be the widest rights of appeal. I tried to argue that point in Committee, but it was rejected by the majority of hon. Members.
The right hon. Gentleman is now taking upon himself a power which is far wider than anything we debated in Committee. He may or may not be a liberal Home Secretary—I do not know—but he will not be Home Secretary for all time. It is clear that this wide power could easily be abused. It means, in effect, that civil liberties in this country can be eroded all too easily. Therefore, Parliament must look carefully at this kind of legislation.
The right hon. Gentleman justified his argument by saying that it was already in the Aliens Order. That is not good enough. The mere fact that a mistake may have been made in the past is no reason for perpetuating it.
I believe that we have to be vigilant about ensuring that people who come to this country and against whom serious allegations are made are entitled to make their own representations to try to rebut such allegations if they so desire. It is noteworthy 'that under these proposals legal representation is not granted to these people. The situation is similar to that which prevails before National Health Service tribunals, where serious 381 allegations can be made against doctors and they are allowed to be represented not by a lawyer but by a friend. The situation is such that an inarticulate person against whom serious allegations are made is quite incapable of presenting his case adequately.
When allegations of a serious nature are being made which could affect a person's livelihood elsewhere, why should he be denied proper representation in this country? What right is being denied to the Home Secretary in this regard? How will it affect the security of this country for a man to have his case properly represented, witnesses properly cross-examined, and so on? I submit that the right hon. Gentleman's arguments are hardly worth consideration.
§ Mr. Crowder
Is it not important that that anybody who has a case should have the opportunity in this country, which is still meant to be a free country and a democracy, of having it put in the best possible light, even if he has to pay for doing it? Why should that be denied by Whitehall and the Treasury? In my view, that is disgraceful. I should like to hear the hon. Gentleman's views.
§ Mr. Davis
I entirely endorse everything that the hon. and learned Gentleman has said. I think he really expected me to say that. We have heard nothing from the right hon. Gentleman which has demolished that argument. The whole burden of proof must rest fairly and squarely on him. It is no use the right hon. Gentleman presenting a benevolent front and hoping that he will get away with it. I am delighted to see that there is grave disquiet on both sides about this, and it is right that the House should present this front to the right hon. Gentleman.
§ New Clause 5 is designed simply to mitigate a situation in which a right of appeal would not normally exist. It is limited because I realise that the Home Secretary will not give way on the question of security. It merely recreates the situation, in certain limited instances which existed prior to 1969, under which an alien who had been resident here for more than two years and whom the Home Secretary proposed to deport other than on security grounds or on the recommendation of a court could 382 make recommendations to the Chief Magistrate.
§ This was dealt with in the Wilson Report, paragraph 53 of which outlined the procedure that had to be undertaken by the Home Secretary. It was an administrative procedure and it was in accordance with Article 3(2) of the European Convention on Establishment of 1955. Under that arrangement the alien could be represented at the hearing, could cross-examine witnesses and call witnesses in rebuttal of the Home Secretary's statement of the facts.
§ Then the Chief Magistrate made a recommendation which the Home Secretary could either reject or accept, and it so happens that, to my knowledge, in every instance the Home Secretary has accepted the recommendation. It provided the alien who had been here for two years, in these very limited circumstances, with some right, some entitlement and some belief that this country still stood for justice. This is what my hon. Friends and, I believe, a number of hon. Gentlemen opposite are anxious to see continue, and I therefore hope that the right hon. Gentleman's proposal will be rejected.
§ Mr. John Mendelson (Penistone)
I ask the Home Secretary to clear up two points that were discussed a great deal in the national Press and particularly in reputable newspapers at the time of the case about which we all know and to which the right hon. Gentleman referred.
I felt that the suggestion that if the tribunal came to a conclusion different from that of the Home Secretary, the right hon. Gentleman would have to resign was completely and totally absurd. I could never understand why that suggestion was made at the time. I thought that the advantage of an orderly legal procedure involving the tribunal and the right of legal representation, rightly urged by my hon. Friend the Member for Hackney, Central (Mr. Clinton Davis), lay in the fact that the Home Secretary could accept the decision of the tribunal as being the view of a neutral body, and that his political position as a Minister of the Crown was not in question.
Under the procedure which the right hon. Gentleman now proposes—which, he 383 argues, will make it an administrative matter which will be entirely within the authority of the House of Commons—the advice he receives will remain completely secret. He is reversing the previous position, and not for the better. Obviously, if he reports a decision to the House of Commons, it is ipso facto entirely a political matter. If the House, by a majority, were to challenge his announcement and were to come to a different conclusion, resignation would be inevitable. But the advantage of the procedure which he now rejects lies precisely in the direction of avoiding any such necessity.
I thought that the right hon. Gentleman expressed some doubt a moment ago when I said that I thought it totally absurd that the newspapers should have suggested that he must resign if the tribunal came to a different decision in the case. I cannot see why a Home Secretary, who generally has the support of the House, is generally regarded as a Home Secretary who is properly doing his job and carrying out his functions and is constantly sustained by a majority in the House, should be obliged to resign because in one particular case a tribunal finds against him. I should have thought that such a Home Secretary could then accept the tribunal's decision in that one case. There is no assumption in the constitution, written or unwritten, that the Home Secretary must be infallible, nor that a Home Secretary cannot be proved to have been wrong in a particular case.
Since I have been a Member of the House, under various administrations, a deportation has sometimes been brought to the notice of the House and the Home Secretary in office at the time by an hon. Member. Normally it is a very urgent situation, as the right hon. Gentleman will recall from some of the cases which have occurred. I have in mind particularly a case during the period when Lord Butler was Home Secretary. On those rare occasions it all depended on the timing. Very often the first demand that the hon. Member would put to the then Home Secretary would be for a stay of execution. The first request would be, "Do not do anything until the debate has taken place. As Home Secretary, commit yourself to wait 48 hours "—or even a week, as the case may be. I refer to the famous case of the Spanish sailor and 384 to the case of one immigrant from a Commonwealth country who had been here for some time.
I thought that it was an improvement to have the orderly procedure of a tribunal, because the tribunal procedure did not make it dependent upon the timing that allowed an hon. Member to bring up a case and made certain that in all those cases in which an appeal was lodged to the tribunal and the person concerned had proper legal representation the House need not worry because it would always be certain that the machinery was available and it would only at a very much later stage, when the result was known, have to consider how the procedure worked.
My hon. Friends have made a very powerful case to put the burden of argument upon the right hon. Gentleman—he has not said too much in introducing his case this evening; perhaps he is reserving it to reply to the debate—to say much more about why he rejects the tribunal procedure and legal representation. My intervention is designed to see whether he can agree that there is no value in being obliged to resign if the tribunal turns against him in one particular case, and whether he could clear up a doubt in my mind whether his fear that a tribunal may turn against him has turned him against the tribunal procedure. If that had anything to do with it, he ought to put it out of his mind. He could get broad agreement in the House and in the country that there would be no need for resignation in such cases, and a matter could become far less political.
While nobody likes an opinion going against him, especially when one is in charge of a great Department of State, none the less it would have no constitutional consequences requiring resignation. If the right hon. Gentleman accepts that part of my argument, can he not see his way to accepting the kind of case proposed by my hon. Friend?
§ Mr. Arthur Davidson (Accrington)
The Home Secretary cannot expect to includefor other reasons of a political naturein an Amendment and let it pass observation by this House, and pass without debate.
385 With great respect to the right hon. Gentleman, he has not convinced me that there is any good reason why this phrase should be included in the Amendment at all. I am not the slightest impressed by the statement that it was included in other legislation. If it was it should not have been there at all—
§ Mr. David Steel
The hon. Member is using the phrase "in other legislation", but this was taken from an Order and Orders are not subject to the line-by-line examination by the House which the House has a duty to undertake on a Bill. That was delegated legislation. We have a higher responsibility for this Bill not to let in what was in an Order.
§ Mr. Davidson
I used the word "legislation" because I wanted as wide and as ambiguous a phrase as possible. I am not sure what that Order was, but I am grateful to the hon. Member for Roxburgh, Selkirk and Peebles (Mr. David Steel) for drawing that to my attention.
If the Home Secretary feels, for whatever reason, that it is vital and necessary that this phrase should be in, I agree entirely with the hon. and learned Member for Darwen (Mr. Fletcher-Cooke) who asked why there should not be a right of appeal against the Home Secretary.
The right hon. Gentleman has rightly given a right of appeal in cases where he makes an order on grounds of a person's presence not being conducive to the public good, as in cases of brothel keeping or some illegal activity. If he is prepared to give a right of appeal in cases of that nature, why is he not prepared to give it in cases of a political nature? I cannot see the evil which can be experienced by having an appeal hearing in those cases.
The right hon. Gentleman seems to think that the presence here of some person stirring up race hatred is of such nature that he should be got rid of. I agree. Of course he should. I would have thought that possibility was conduct which would be in the category of his presencenot being conducive to the public good".If he has been indulging in that kind of activity, it is not likely that that sort of activity could affect the security of the State, and if it does affect the security of the State, the Home Secretary has got him 386 on other grounds, anyway. This is not only menacing; it is unnecessary.
If this is to be put in, the Home Secretary should consider a right of appeal with proper legal representation.
§ Mr. Sydney Bidwell (Southall)
The Secretary of State, in trying to pick up the trend of the argument in Committee, has made the thing much worse by the wording of his Amendment, brought in from an Order applicable to aliens legislation. As it is at present, and as the hon. Member for Roxburgh, Selkirk and Peebles (Mr. David Steel) has pointed out, correctly, there is a difference, as between chalk and cheese, in the way in which they are subject to parliamentary scrutiny.
The Home Secretary has built up a reputation for being a kind of liberal Conservative. I accept that he is a liberal on Home Office matters. I think that this is largely the result of confusion. It seems that the right hon. Gentleman has not applied his mind sufficiently penetratingly to the situation. It seems that on this question, about which there is such grave disquiet on both sides, the right hon. Gentleman has not fully realised the massive changes which go hand in hand with the conception of "of a political nature".
These words, extracted from an Order applicable to aliens, will become applicable to a widely extending range of people who can be deemed to be non-patrial. The words will apply henceforth to citizens of the Commonwealth who will be coming here not exactly on alien terms, although that is what many right hon. and hon. Members opposite believe according to the fifth-rate argument we heard from the back benches in Committee from people who are under a duty to examine the Bill. I imagine that the area of ignorance on this question is much wider in the House as a whole, and particularly amongst hon. Members opposite
Henceforward, Commonwealth citizens under restricted work permits are to come here to work under restrictive law—first for a year on probation and then, if they are lucky, after a further period with the possibility of the right of abode. All that time they are to have voting rights. They are to have, in a sense, citizens 'and non-citizens' rights. That is the muddle the Government have got themselves into. 387 They are increasing the muddle by using terms like this. We pointed out in Committee and on Second Reading that a Commonwealth citizen here on restricted work permit conditions and with citizen's rights could become a Member of the House.
Under the terms of the Government Amendment, workers could have a restricted right of employment but not a restricted right of participation in the democratic processes and could become members of a local authority or be justices of the peace, as so many have in the past. This is an Immigration Bill, not a deportation Bill. Is it any wonder that idiotic proposals such as these do nothing but increase the existing fears amongst the immigrants who are already here?
§ 11.15 p.m.
§ Mr. James Callaghan (Cardiff, South-East)
My hon. Friend the Member for Southall (Mr. Bidwell) is probably correct in saying that there is a feeling of disquiet in the House about this matter. I should like to trace it as dispassionately as I can and see whether I fully understand what it is about. It is very complicated. As an Order passed during the lifetime of the Labour Government has been prayed in aid by the Home Secretary, I should like to see what we are discussing and whether my understanding is correct.
I have been thinking about this and looking it up whilst I have been listening to the debate. As I understand it, the whole matter started with the Report of the Wilson Committee—Cmnd. 3387—paragraphs 143 and 144 of which contained a recommendation. Paragraph 143 stated:Cases arise from time to time in which the Home Secretary feels justified in excluding a person from this country, or requiring him to leave, on grounds that are essentially of a political nature—for example, that his presence here is or would be harmful to international relations, or offensive to public opinion.It then put both sides of the case:We doubt whether the system of appeals which we are proposing would provide apt machinery for dealing with such cases. We would not therefore think it wrong in principle, or destructive of the general value of the proposed appeal system, to remove such cases from the scope of that system and leave them 388 entirely to the Home Secretary's discretion subject to his responsibility to Parliament.But, having put both sides of the case, it added at paragraph 144:After discussion with the Home Office we are satisfied that there is no need to exclude a case from the appeal system merely because the decision in question was taken on security grounds. It will, however, probably be necessary to make special arrangements for the disposal of such cases within the framework of the system we propose, so as to ensure that appeals are heard only by members of the Tribunal or adjudicators who have been cleared for access to classified information.My recollection and understanding of the position is that when we were in Government we accepted what the Committee said in that paragraph and gave a right of appeal under Section 9 of the Immigration Appeals Act, 1969, which says:Whether a person appeals to an adjudicator against any decision or action and it appears to the Secretary of State that the decision or action was taken in the interests of national security, the Secretary of State may direct that the appeal shall be referred to and heard by the Tribunal instead of by an adjudicator….
§ Mr. Callaghan
That comes afterwards. I am subject to correction, but my belief is that they were allowed to be represented before the tribunal, as, I think, in the Dütschke case where there was a whole legal panoply that in my view went beyond what I had expected under the Section. That is one of the difficulties about that case. The tribunal was nominated by the Lord Chancellor and the Home Secretary of the day.
That was the position until the Home Secretary came to the conclusion that he could not be overborne by such a tribunal without his own position being called into question. I agree with my hon. Friend. I never felt that difficulty myself. I think that if I had put a case to the tribunal and had been overborne I should have been very angry, and should have been sure that it was wrong. But I do not think I should have felt it incumbent upon me to resign because of that. However, there was that feeling, and I am not arguing that matter particularly tonight.
The Home Secretary then took the view that he should exclude security cases from the appeals procedure. The Bill, as it now reads and as is read before it 389 went to Committee says that a person shall not be entitled to appeal if the Secretary of State certifies that his departure from the United Kingdom would be conducive to the public good.
The Home Secretary—if I am wrong I want him to correct me— has now criticised the wordsconducive to the public good".although they have appeared in previous Acts and I do not feel that I could entirely disregard them, though I am in Opposition now. He has tried to meet us to some extent by defining or enlarging the phrase. But, instead of leaving it at that, in his Amendment No. 46 he has provided that a person shall not be entitled to appeal if the grounds are that he is being removed… in the interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature.I do not think that the right hon. Gentleman is quite fair in praying us in aid in relation to this extension. It is true that the words were used in the Aliens (Appeals) Order, 1970. I do not pretend that I remember every word of that Order. I ask the House to bear with me while I read Article 8 to see whether the Home Secretary is not stretching the meaning of this. It is headedSpecial procedure in cases involving national security, etc., or forgery of documentsand it says:Whether a person appeals against any decision or action to an adjudicator, or by virtue of Article 4(1)(b) of this Order to the Tribunal, and it appears to the Secretary of State that the decision or action was taken wholly or mainly in the interests of national security or of the relations between the United Kingdom and any other country or otherwise on grounds of a political nature, the Secretary of State may direct that appeal—This is a different point. Unless I am mistaken—and I do not think I am—the Aliens (Appeals) Order said, "We do not think that cases of a political nature should be considered by an adjudicator; we consider that they should be extracted from his purview and given to the tribunal"—made up of the Lord Chancellor's nominees and the Home Secretary's nominees. But, with respect, 390 that is not what the Home Secretary's Amendment No. 46 does.
- (a) if it would otherwise be heard by an adjudicator, shall be referred to and heard by the Tribunal as constituted for the purpose of hearing appeals …".
§ Mr. Callaghan
No. 49 as well, is it? I am on No. 46 at the moment, which provides, after the reference to "conducive to the public good", that we rule out from appeal altogether cases covered bythe interests of national security or of the relations between the United Kingdom and any other country or for other reasons of a political nature ".I feel that, in going some way to meet us, the Home Secretary has extended the conclusions to a degree which might well arouse the legitimate disquiet of hon. Members on both sides. Unless I am mistaken—I always give way to the lawyers, because they interpret these things better than I can—have I put it correctly?—
§ Mr. Callaghan
Thank goodness for that. As I understand it, the Home Secretary has, I am sure unwittingly, stretched the meaning and the purpose, so let me repeat my understanding of the point on the Aliens (Appeals) Order—
§ Mr. Callaghan
The right hon. Gentleman shakes his head. I shall state it as correctly as I can, and he can put me right. The Aliens (Appeals) Order gave a right of appeal to people who might be thought to be offensive to public opinion and who were, therefore, removed on political grounds, but it gave it in a limited area by saying that they might go only to the tribunal. As I understand it, the Home Secretary's Amendment would remove them from the ambit not only of the adjudicator but of the tribunal as well.
If I am wrong about that, the Home Secretary will put me right. But I have listened to the debate and I have looked up the background, and I believe that what I have said is correct. In the circumstances, therefore, I feel that we are justified in pressing the Home Secretary on the matter. Clearly, he cannot do anything about it at the moment, but he ought to have another and serious look at the question when the Bill goes to the other place.
§ Mr. Fletcher-Cooke
From his reading of the Wilson Report, will the right hon. Gentleman say whether I am right in thinking that, after the Committee had been to the Home Office and had that reassuring conversation with officials, its only special recommendation or special form of appeal was for matters of national security, so called? The Wilson Committee did not think that there was any need for a special appeal for matters of a political nature. Therefore, to pray Wilson in aid for no appeal at all for matters of a political nature does not accord with the report.
§ Mr. Callaghan
The hon. and learned Gentleman reinforces my point far more powerfully than I could have done. I did not bring the point out clearly. If our joint reading and understanding of the matter is correct, Wilson was keeping this in terms of national security, but the Home Secretary is widening it.
§ Mr. Maudling
It is clear from the debate that there are still two points which concern the House. It is accepted that there is a special category of cases of deportation which must be dealt with in a special manner. The two questions are these: first, "What should be the ambit of that special category and what should fall within it?;" second, "Given the special category, how should it be handled and what should be the appeal machinery?"
On the first point, there is, I think, no difference between the two sides of the House as regards national security and international relations. It is the cases of a political nature which concern the House.
I think that the right hon. Gentleman the Member for Cardiff, South-East (Mr. Callaghan) is right in his description of the origin. It originated from the Wilson Report, the phrase used by Wilson, I think, referring to the possibility of matters offensive to public opinion. On the basis of the Wilson Report and the consideration of the previous Government, Article 8 of the Aliens (Appeals) Order was laid before the House in draft, was before the House for a long time in draft, was referred to frequently in discussions on the Bill and was approved by the House. As far as I know, it has not given rise to difficulties. We are following the procedure put forward by 392 the previous Government which was discussed, noted and accepted by the House and which, as far as I know, is perfectly satisfactory. On the whole, it is a pretty reasonable argument.
It is possible to say that the House and the previous Government were wrong. I do not think they were. As the Wilson Committee said, there are cases of a political character. For example, people may come here to make a speech wholly offensive to a certain section of our public. There should be a right to exclude them. These are special cases of a political character in which the judgment is better made by politicians in the House than by an immigration tribunal.
The second point is: who is to make the decision? It is said that if the Home Secretary decides that a certain person should be deported there should be an appeal. But an appeal to whom? Should it be to a tribunal or to the House of Commons? It cannot be both. If we take the power of decision from the Home Secretary and say that he can be overruled by a tribunal, we take responsibility from the House. This point was always recognised in our constitution until a few years ago—that the Government are responsible for national security to the House of Commons.
Whether an individual's presence in this country is a danger to this country is not a legal decision. It is not a justiciable issue or a matter of law; it is a matter of judgment. Judgment should be exercised by the Government, subject to the House of Commons, and not by a tribunal which is not under the control of the House.
§ Mr. S. C. Silkin
Surely the right hon. Gentleman recognises the distinction between people who, as he puts it, are a danger to this country and people who are, in the words of the Wilson Report, offensive to public opinion. Why should they be prevented from putting their case before an independent tribunal?
§ Mr. Maudling
In that case, why did the Labour Party, when in government, treat these people on the same basis as a threat to national security?
§ Mr. Callaghan
Either there is a misunderstanding or I am deficient in understanding. Article 8 of the Aliens (Appeal) 393 Order said—and this is where the right hon. Gentleman is misleading the House—that they shall have a right of appeal but that it shall be a special right of appeal to the tribunal and shall be lifted out of the hands of the adjudicator. The Home Secretary is now saying that there shall be no right of appeal and that he as Home Secretary will decide. He is going a little far in praying us in aid to support the fact that he is destroying a right of appeal.
§ Mr. Maudling
The right hon. Gentleman's memory is a little defective. He provided two sorts of appeal. In one the decision was mandatory on him. In the other it was purely advisory, in which case the final decision rested with him. In defining the special category where he preserved his final right of decision, he included the security cases and other cases of a political nature. In taking the special category of case, we are taking precisely the same category as the right hon. Gentleman took, very wisely and for very good reasons.
I return to the basic point, which is of fundamental importance. If the Government decide that someone's presence in this country is contrary to national security and the interests of international relations or falls within the other categories which the Labour Party, when in government, accepted, if the Home Secretary is wrong he is answerable to Parliament, not to an adjudicator or administrator. These are decisions of a political, executive and administrative character.
In my Amendments I have put forward precisely what the Committee undertook to do—a procedure of advice which has proved wholly satisfactory in the case of our own Crown servants who are said to be people who should not be fully trusted. Individual cases in the Civil Service are tackled by this system. To apply it to the people with whom we are dealing is reasonable and preserves an important constitutional point—the responsibility of the Home Secretary to Parliament and not to an adjudicator.
§ 11.30 p.m.
§ Mr. Crowder
My right hon. Friend says "If the Government are wrong" or "If the Home Secretary is wrong". They probably will be wrong, from what I know of them. In every case of this 394 sort, would it not be wise if they listened to legal argument? Why does everything have to be swept aside by bureaucracy in Whitehall? Why on earth can we not have the case properly presented by legal representation, which, after all is skilled representation of a case, however bad it may be—and I know about that because I frequently have to present such a case. It is all part of the set-up of this country.
Why not let the matter be discussed and presented before the Home Secretary—who has very great obligations, although he is not a judge and has no judicial training whatever—jumps into a decision? It would be nice to have the right decision.
§ Mr. Maudling
My hon. and learned Friend makes his point with the greatest charm, but I do not agree with him. I do not think he has quite understood my point. The decision in these cases is not a legal decision. When it comes to settling legal matters I bow invariably to those who are practising members of the Bar, unlike myself, who am a theoretical member of the Bar. These are not matters for legal decision at all. The question of whether an individual's presence in this country is bad for national security can, I believe, be better decided by a Minister responsible to Parliament than by even the most distinguished lawyer.
§ Mr. Crowder
I agree that these are not legal matters, but they are humane matters, they are matters affecting the individual, who may not be in a position to put them in the best possible light before the people who make the final decision. I know that it is the right hon. Gentleman who does so, on the advice of those in the Civil Service who assist him in these matters. The presentation of a case need not be on a legal basis; it can, clearly, be put on a humane basis. That is what matters here. As this is humanity with which we are dealing, as it is a matter of immigration, of the future of human beings about which my right hon. Friend will have to take a decision, would there be any harm in someone who is skilled in putting matters in the best possible light—be they legal or humane—being allowed to do so? It would assist the Home Secretary. Good heavens, there are hon. Friends sitting 395 on these benches, behind me, opposite me, who sit at quarter sessions and the like and it is of the greatest assistance to them when they have to judge a case that it has been put by someone skilled in such matters.
§ Mr. Speaker
Order. I cannot have an hon. and learned Member who is making an intervention giving way to another hon. Member during the course of that intervention.
§ Mr. Crowder
I ask my right hon. Friend: what is harmful in people who are skilled in putting a case in its best possible light assisting him and his Department in this matter? Why deny it?
§ Mr. Hugh Fraser (Stafford and Stone)
Amendment No. 46 defines more clearlyconducive to the public good.To some of us this extension of what the public good means could be alarming. This is especially so when dealing with relations between the United Kingdom and another country because it goes rather wider than some people anticipated.
I can think of large numbers of people who have come here and whose presence might have been termed as "not conducive to the public good"—Louis Napoleon, Kossuth, Garibaldi, Karl Marx. A large number of people in the Commonwealth could fall within this category. We must remember that fortunes change. Perhaps Dr. Obote, if he were here, would come under such consideration. Therefore, the Secretary of State should look a little more circumspectly at some of the suggestions which have been put forward on this matter.
It is important from the point of view of protecting my right hon. Friend's own interests that there should be some form of sieve to catch these cases before he reaches his final decision, otherwise the House will be the final arbiter. This would put a heavy load on the House which would be full of emotion and which would raise wide political issues with which it would be difficult for the House to deal.
Some provision on the lines of new Clause 5, which is only permissive and 396 would provide for the Chief Magistrate to make a recommendation with which the Secretary of State need not agree, seems a way by which persons coming into this country could be protected. The standing of this country in international law would be vindicated and the load on the Secretary of State would be ameliorated.
I hope that when the Bill goes to the House of Lords my right hon. Friend will reconsider the matter further. The width of whatconducive to the public goodmeans could be dangerous. We are not depending on the permanency of a sound, safe, good, liberal man in office like my right hon. Friend. We are making the laws of this country. This is what this House is about. It is for making laws, not for making statutes which will be interpreted by good men. Therefore, the argument that we now have a good, warm-hearted Home Secretary is no justification for a Clause which, at this stage, is far too vague and requires better definition.
§ Mr. Callaghan
I should like to raise a point of order, Mr. Speaker, on the selection of Amendments, which of course is entirely a matter for you, but on the other hand I know that you like to meet the convenience of the House. New Clause 5 is not a Clause upon which we could vote at present because, under the selection, it would not be called for a Division, nor is new Clause 2 appropriate for a Division.
I would draw your attention, Sir, to Amendment No. 95 which seeks to strike out the wordsor for other reasons of a political nature.from Government Amendment No. 46.
Would you reconsider your decision and allow us to test the opinion of the House on Amendment No. 95? We should not need, and obviously would not get, a further discussion on it, but this procedure would crystallise the distinction that has emerged, and enable the House to register a view on whether it thinks that cases of a political nature might reasonably go to the appeals tribunals. To facilitate progress if you were able to do that, Mr. Speaker. I would propose that we should not spend further time on new Clause 2, but pass on.
§ Mr. Speaker
I will certainly consider the point sympathetically. I do not think it would be right for me to give a Ruling on it now, but the selection is always provisional, and I will bear in mind what has been said.
§ Mr. David Steel
Further to that point of order. Will you also consider, Mr. Speaker, for precisely the same reasons, Amendments Nos. 114 and 115. What the right hon. Member for Cardiff, South-East (Mr. Callaghan) has just said would not cover the objection which the right hon. Member for Stafford and Stone (Mr. Hugh Fraser) has spoken to. The Amendments tabled by my colleagues and me are designed to remove the right of appeal only in cases of national security. A large section of opinion in the House would support that, and I ask you to consider this point.
§ Mr. Speaker
It is my practice to consider these matters in the morning each day, and I will bear these points in mind.
§ Mr. Callaghan
I beg to ask leave to withdraw new Clause 2, knowing that the matter will have your full, impartial consideration, Mr. Speaker.
§ Motion and Clause, by leave, withdrawn.